THOMAS P. SWEENEY III EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of August 18, 2004 (the
"Effective Date"), by and between Front Porch Digital, Inc., a Nevada
corporation with its headquarters located in Mt. Laurel, New Jersey (the
"Employer"), and Thomas P. Sweeney III (the "Executive"). In consideration of
the mutual covenants contained in this Agreement, the Employer and the Executive
agree as follows:
1. EMPLOYMENT. The Employer agrees to employ the Executive and the
Executive agrees to be employed by the Employer on the terms and conditions set
forth in this Agreement.
2. CAPACITY; LOCATION. The Executive shall serve the Employer as
Chief Executive Officer and, if duly elected, the Executive agrees to act as
Chairman of the Employer's Board of Directors for as long as he is employed as
the Chief Executive Officer and so elected. In his capacity of Chief Executive
Officer, Executive will report to the Board of Directors, and shall be
responsible for all strategic and operational matters relating to the Employer's
overall business requirements subject to the direction of the Board of
Directors. In such capacity, the Executive shall perform such services and
duties in connection with the business, affairs and operations of the Employer
as may be assigned or delegated to the Executive from time to time by or under
the authority of the Board of Directors. Executive's employment with Employer
will be based in Employer's Boulder, Colorado office; PROVIDED, that Executive
may be required from time to time to travel in connection with Employer's
business needs.
3. TERM. Unless earlier terminated as provided in this Agreement,
the term of the Executive's employment under this Agreement shall be for a
period of two (2) years beginning on the Effective Date (the "Initial Term").
This Agreement may be renewed or extended if mutually agreed to by the Employer
and Executive in writing (the Initial Term, together with any subsequent
employment period being referred to herein as the "Employment Term").
4. COMPENSATION AND BENEFITS. The regular compensation and benefits
payable to the Executive during the Employment Term under this Agreement shall
be as follows:
(a) BASE SALARY. For all services rendered by the Executive
under this Agreement, the Employer shall pay the Executive a base salary
(the "Salary") at the annual rate of Two Hundred Seventy-Five Thousand
Dollars ($275,000.00). Such Salary shall be increased to Three Hundred
Thousand Dollars ($300,000.00) on January 1, 2005 and shall be subject
to further increase from time to time at the discretion of the Board of
Directors upon the recommendation of the Compensation Committee of the
Board of Directors (the "Compensation Committee"). The Salary shall be
payable in periodic installments in accordance with the Employer's usual
practice for its senior executives.
(b) BONUS. Executive shall be eligible for an annual bonus
of up to 100% of Executive's Salary based upon Executive's achievement
of certain performance criteria to be determined and evaluated by the
Board of Directors it its sole discretion. Such bonus shall be payable
on or before February 25th of each year.
(c) REGULAR BENEFITS. The Executive shall be reimbursed for
an individual health insurance policy to a maximum of Seven Hundred
Fifty Dollars ($750.00) per month or shall be entitled to health
insurance benefits from Employer, and shall also be entitled to
participate in any employee benefit plans, life insurance plans,
disability income plans, retirement plans, expense reimbursement plans
and other benefit plans which the Employer may from time to time have in
effect for all or most of its executive management employees. Such
participation shall be subject to the terms of the applicable plan
documents, generally applicable policies of the Employer, applicable law
and the discretion of the Board of Directors, the Compensation Committee
or any administrative or other committee provided for in or contemplated
by any such plan. Except with respect to the aforementioned health
insurance benefits, nothing contained in this Agreement shall be
construed to create any obligation on the part of the Employer to
establish any such plan or to maintain the effectiveness of any such
plan that may be in effect from time to time.
(d) INSURANCE. The Employer will assume the payment
obligations of Executive's life insurance policy in effect as of the
date hereof; provided that Employer shall not be obligated to pay
premiums in excess of $9,500 per year. The Employer shall ensure that
Executive is added to Employer's directors and officers insurance policy
with commercially reasonable coverage and policy limits effective on the
Effective Date and Employer agrees to keep such insurance in effect
throughout the term of this Agreement.
(e) VACATION. The Executive shall be entitled to four weeks
of vacation, such vacation time to accrue on a per-pay-period basis.
(f) TAXATION OF PAYMENTS AND BENEFITS. The Employer shall
undertake to make deductions, withholdings and tax reports with respect
to payments and benefits under this Agreement to the extent that it
reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. In the event that it is
determined that any payment or distribution of any type to or for the
benefit of the Executive made by the Employer, by any of its affiliates,
by any person who acquires ownership or effective control or ownership
of a substantial portion of the Employer's assets (within the meaning of
section 280G of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder (the "Code")) or by any affiliate of such person,
whether paid or payable or distributed or distributable pursuant to the
terms of an employment agreement or otherwise (the "Total Payments"),
would be subject to the excise tax imposed by section 4999 of the Code
or any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest or penalties, are
collectively referred to as the "Excise Tax"), then the Executive shall
be entitled to receive an additional payment (an "Excise Tax Restoration
Payment") in an amount that shall fund the payment by the Executive of
any Excise Tax on the Total Payments as well as all income taxes imposed
on the Excise Tax Restoration Payment, any Excise Tax imposed on the
Excise Tax Restoration Payment and any interest or
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penalties imposed with respect to taxes on the Excise Tax Restoration or
any Excise Tax.
(g) EXPENSES. The Employer shall reimburse the Executive for
all reasonable and necessary business related travel expenses incurred
or paid by the Executive in performing his duties under this Agreement
and which are consistent with applicable policies of the Employer. All
payments for reimbursement of such expenses shall be made upon
presentation by the Executive of expense statements or vouchers and such
other supporting information as the Employer may from time to time
reasonably request.
(h) STOCK OPTIONS. As additional consideration for
Executive's performance of services hereunder, effective upon the
Effective Date, the Employer shall grant to Executive, pursuant to the
Employer's Equity Incentive Plan, options (the "Options") to purchase
10,237,000 shares (subject to customary adjustment for splits,
combinations and similar transactions) of Common Stock, $.001 par value
per share, of the Employer. It is intended that the maximum amount of
these Options as permitted under law qualify as an "incentive stock
option" under Section 422 of the Code, and to the extent that all or any
portion of the Options do not so qualify, the Options shall be treated
as non-qualified options. The Options shall have an exercise price as
determined by the Board of Directors as soon as practicable (subject to
customary adjustment for splits, combinations and similar transactions)
and shall expire on the tenth (10th) anniversary of the Effective Date.
The Options will be subject to a vesting schedule such that one-third of
the Options shall vest on the first anniversary of the Effective Date
and one-twenty-fourth of the remaining Options shall vest each month
thereafter. Not later than ten (10) days following the Effective Date,
the Employer shall deliver to Executive an Award Agreement issued
pursuant to Employer's 2000 Equity Incentive Plan governing the Options
and containing the terms set forth in this Section 4(h). Additionally,
the Award Agreement will provide that, upon termination of Executive's
employment as a result of any of the events described in Section(s) 6(b)
or (c) hereof, then, notwithstanding such termination, (A) the Options
that would have vested but for such termination during the subsequent
12-month period will vest immediately, (B) such vested Options will
continue to be exercisable for a period not to exceed ten (10) years
from the grant date of such Options, and (C) any restrictions on the
sale of the shares underlying the Options shall be removed by Employer,
other than restrictions pursuant to applicable federal securities laws
or pursuant to that certain Lock-Up and Voting Agreement dated the date
hereof between the Employer, Employee and the Former MSI Stockholders
named therein (the "Lock-Up Agreement"). Executive shall also be
eligible to otherwise participate in Employer's Equity Incentive Plan
subject to approval by the Board of Directors.
(i) EXCLUSIVITY OF SALARY AND BENEFITS. The Executive shall
not be entitled to any payments or benefits other than those provided
under this Agreement.
5. EXTENT OF SERVICE. During the Executive's employment under this
Agreement, the Executive shall devote the Executive's full business time, best
efforts and business judgment, skill and knowledge to the advancement of the
Employer's interests and to the discharge of the
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Executive's duties and responsibilities under this Agreement. The Executive
shall not engage in any other business activity, except as may be approved by
the Board of Directors; PROVIDED, that nothing in this Agreement shall be
construed as preventing the Executive from:
(a) investing the Executive's assets in any company or other
entity in a manner not prohibited by Section 7(d) and in such form or
manner as shall not require any material activities on the Executive's
part in connection with the operations or affairs of the companies or
other entities in which such investments are made; and
(b) engaging in religious, charitable or other community or
non-profit activities that do not impair the Executive's ability to
fulfill the Executive's duties and responsibilities under this
Agreement.
(c) accepting no more than two Board positions with other
companies with prior approval of the Employer's Board of Directors.
6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the
provisions of Section 3, the Executive's employment under this Agreement shall
terminate under the following circumstances set forth in this Section 6.
(a) TERMINATION BY THE EMPLOYER FOR CAUSE. The Executive's
employment under this Agreement may be terminated for "Cause" without
further liability on the part of the Employer, effective immediately
upon a vote of the Board of Directors and written notice to the
Executive. Only the following shall constitute "Cause" for such
termination:
(i) dishonest or fraudulent statements or acts of
the Executive with respect to the Employer or any affiliate of
the Employer;
(ii) the Executive's conviction of, or entry of a
plea of guilty or nolo contendere for, (A) a felony or (B) any
misdemeanor (excluding minor traffic violations) involving
deceit, dishonesty or fraud;
(iii) willful and wanton conduct or willful misconduct
of the Executive with respect to the Employer or any affiliate
of the Employer; or
(iv) material breach by the Executive of any of the
Executive's obligations under this Agreement, or any other
agreement to which Executive and Employer are now or hereafter a
party to.
(b) TERMINATION BY THE EMPLOYER WITHOUT CAUSE. Subject to
the payment of Termination Benefits pursuant to Section 6(d), the
Executive's employment under this Agreement may be terminated by the
Employer without Cause upon written notice to the Executive (a
termination "Without Cause").
(c) TERMINATION BY EXECUTIVE FOR GOOD REASON. The Executive
may, at his option, terminate Executive's employment for "Good Reason"
by giving a notice of
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termination to Employer in the event that: (i) there is a failure of
Employer (or successor employer) to promptly pay Executive's salary or
additional compensation or benefits hereunder in accordance with this
Agreement in any material respect, (ii) Executive is assigned duties
substantially inconsistent with his title without Executive's prior
written consent, (iii) Executive's principal place of employment is
assigned to a geographic location not agreed to by Executive, or (iv)
any other material violation or breach by Employer of this Agreement. It
shall also be considered Good Reason for termination by Executive if, in
the event of a Change of Control (as hereinafter defined), any successor
employer fails to fully assume Employer's obligations under this
Agreement. For the purposes of this Agreement, a "Change of Control"
shall mean the occurrence of any of the following events: (A) a
dissolution or liquidation of the Employer; (B) a sale or other
disposition of all or substantially all of the Employer's assets; (C) a
merger or consolidation involving the Employer in which stockholders of
the Employer immediately prior to such transaction do not own a majority
of the voting power of the Employer or its successor immediately after
such transaction; or (D) a sale or other transfer of capital stock of
Employer in one or a series of related transactions whereby an
individual or "group" (as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) which did not previously
have direct or indirect "control" (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended) of Employer
acquires such control.
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise
specifically provided in this Agreement or otherwise required by law,
all compensation and benefits payable to the Executive under this
Agreement shall terminate on the date of termination of the Executive's
employment under this Agreement. Notwithstanding the foregoing, in the
event of termination of the Executive's employment with the Employer (A)
Without Cause pursuant to Section 6(b), (B) for Good Reason pursuant to
Section 6(c) or (C) upon the non-renewal of this Agreement by the
Employer upon the expiration of the Initial Term, the Employer shall
provide to the Executive the following termination benefits
("Termination Benefits"):
(i) payment of the Executive's Salary at the rate
then in effect pursuant to Section 4(a) for the period from the
date of termination until the later of (X) the date that is
twelve (12) months after the date of termination or (Y) the
remainder of the Initial Term (the "Severance Period"). Salary
payments will be made on a monthly basis.
(ii) a single, pro-rated bonus payment payable not
later than thirty (30) days following the date of termination in
an amount equal to the arithmetic mean of the bonus amounts paid
to Executive pursuant to Section 4(b) hereof during the
immediately preceding three years; provided that if this
Agreement is terminated prior to the expiration of the Initial
Term, the amount payable pursuant to this subclause (ii) shall
be equal to (A) a pro rata amount of Executive's salary then in
effect if this Agreement is terminated during the first year of
the Initial Term, (B) a pro rata amount of Executive's
first-year bonus if this Agreement is terminated during the
second year of the Initial Term, or (C) a pro rata amount of
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the arithmetic mean of the bonus amounts paid to Executive
pursuant to Section 4(b) hereof during the first two years of
the Initial Term if this Agreement is terminated during the
third year after the date hereof.
(iii) continuation of group health plan benefits to
the extent authorized by and consistent with 29 U.S.C. ss. 1161
ET SEQ. (commonly known as "COBRA"), with the cost of the
regular premium for such benefits shared in the same relative
proportion by the Employer and the Executive as in effect on the
date of termination for twelve (12) months. If Executive does
not enroll in the group health plan, but has an individual
health policy instead, the monthly premium will be paid for up
to twelve (12) months or the date the Executive is employed
elsewhere, whichever first occurs.
(iv) continuation of the life insurance benefits
described in Section 4(d) hereof for during the Severance
Period.
(v) the rights respecting the Options as described
and on the terms set forth in Section 4(h) hereof.
(vi) subject in all cases to the Lock-Up Agreement
and the terms of any registration rights agreements between the
Employer and the Executive then in effect, the grant of a demand
registration right having customary terms covering all shares of
capital stock of the Employer beneficially owned by the
Executive pursuant to a Registration Rights Agreement
substantially in the form of that certain Registration Rights
Agreement dated October 10, 2000 between Employer and Equity
Pier, LLC.
The Termination Benefits set forth in subclause (i)
above shall be paid in equal monthly installments from the date of
termination, and the Termination Benefits set forth in subclause (iii)
above shall continue effective until the end of the Severance Period or
the date the Executive is employed elsewhere, whichever first occurs. If
the termination is for Good Reason following a Change of Control, the
payment described in (i) above will be paid in full upon termination,
not made payable on a monthly basis.
Notwithstanding the foregoing, nothing in this
Section 6(d) shall be construed to affect the Executive's right to
receive COBRA continuation (if enrolled in the group health plan)
entirely at the Executive's own cost to the extent that the Executive
may continue to be entitled to COBRA continuation after the Executive's
right to cost sharing under Section 6(d)(iii) ceases.
(e) DISABILITY. If the Executive shall be disabled so as to
be unable to perform the essential functions of the Executive's then
existing position or positions under this Agreement with reasonable
accommodation, the Board may remove the Executive from any
responsibilities and/or reassign the Executive to another position with
the Employer during the period of such disability. Notwithstanding any
such removal or reassignment, the Executive shall continue to receive
the Executive's full Salary (less any disability pay
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or sick pay benefits to which the Executive may be entitled under the
Employer's policies) and benefits under Section 4 of this Agreement
(except to the extent that the Executive may be ineligible for one or
more such benefits under applicable plan terms) for a period of time
equal to nine (9) months. If any question shall arise as to whether
during any period the Executive is disabled so as to be unable to
perform the essential functions of the Executive's then existing
position or positions with reasonable accommodation, the Executive may,
and at the request of the Employer shall, submit to the Employer a
certification in reasonable detail by a physician selected by the
Employer to whom the Executive or the Executive's guardian has no
reasonable objection as to whether the Executive is so disabled or how
long such disability is expected to continue, and such certification
shall for the purposes of this Agreement be conclusive of the issue. The
Executive shall cooperate with any reasonable request of the physician
in connection with such certification. If such question shall arise and
the Executive shall fail to submit such certification, the Employer's
determination of such issue shall be binding on the Executive. Nothing
in this Section 6(e) shall be construed to waive the Executive's rights,
if any, under existing law including, without limitation, the Family and
Medical Leave Act of 1993, 29 U.S.C. ss.2601 ET SEQ. and the Americans
with Disabilities Act, 42 U.S.C. ss.12101 ET SEQ.
7. CONFIDENTIAL INFORMATION, NONCOMPETITION AND COOPERATION.
(a) CONFIDENTIAL INFORMATION. As used in this Agreement,
"Confidential Information" means information belonging to the Employer
which is of value to the Employer in the course of conducting its
business and the disclosure of which could result in a competitive or
other disadvantage to the Employer. Confidential Information includes,
without limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property; trade secrets;
know-how; designs, processes or formulae; software; market or sales
information or plans; customer lists; and business plans, prospects and
opportunities (such as possible acquisitions or dispositions of
businesses or facilities) which have been discussed or considered by the
management of the Employer. Confidential Information includes
information developed by the Executive in the course of the Executive's
employment by the Employer, as well as other information to which the
Executive may have access in connection with the Executive's employment.
Confidential Information also includes the confidential information of
others with which the Employer has a business relationship.
Notwithstanding the foregoing, Confidential Information does not include
information in the public domain, unless due to breach of the
Executive's duties under Section 7(b).
(b) CONFIDENTIALITY. The Executive understands and agrees
that the Executive's employment creates a relationship of confidence and
trust between the Executive and the Employer with respect to all
Confidential Information. At all times, both during the Executive's
employment with the Employer and after its termination, the Executive
will keep in confidence and trust all such Confidential Information, and
will not use or disclose any such Confidential Information without the
written consent of the Employer, except as may be necessary in the
ordinary course of performing the Executive's duties to the Employer.
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(c) DOCUMENTS, RECORDS, ETC. All documents, records, data,
apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the
Executive by the Employer or are produced by the Executive in connection
with the Executive's employment will be and remain the sole property of
the Employer. The Executive will return to the Employer all such
materials and property as and when requested by the Employer. In any
event, the Executive will return all such materials and property
immediately upon termination of the Executive's employment for any
reason. The Executive will not retain with the Executive any such
material or property or any copies thereof after such termination.
(d) NONCOMPETITION AND NONSOLICITATION. Without the prior
written consent of the Board of Directors, during the period that
Executive is employed by Employer and until the later of (i) one (1)
year thereafter, or (ii) the end of the Severance Period, the Executive
(A) will not, directly or indirectly, whether as owner, partner,
shareholder, consultant, agent, employee, co-venturer or otherwise,
engage, participate, assist or invest in any Competing Business (as
hereinafter defined); or (B) will refrain from directly or indirectly
employing or engaging or attempting to employ or engage any person who
is an employee of the Employer or recruiting or otherwise soliciting,
inducing or influencing any person to leave employment with the
Employer; and (C) will refrain from soliciting or encouraging any
customer or supplier to terminate or otherwise modify adversely its
business relationship with the Employer. The Executive understands that
the restrictions set forth in this Section 7(d) are intended to protect
the Employer's interest in its Confidential Information and established
employee, customer and supplier relationships and goodwill, and agrees
that such restrictions are reasonable and appropriate for this purpose.
For purposes of this Agreement, the term "Competing Business" shall mean
any business that provides or intends to provide the same or similar
types of services or products as those provided or targeted by Employer
or any of its subsidiaries in any geographic area served or targeted by
Employer or any of its subsidiaries as of the date of termination.
Notwithstanding the foregoing, the Executive may own up to two percent
(2%) of the outstanding stock of a publicly held corporation.
Notwithstanding anything contained herein that may be interpreted to the
contrary, in the event that Employer materially breaches any of its
obligations to pay Termination Benefits, this Section 7(d) shall not
apply and shall be deemed to be deleted from this Agreement.
(e) THIRD-PARTY AGREEMENTS AND RIGHTS. The Executive
represents to the Employer that the Executive's execution of this
Agreement, the Executive's employment with the Employer and the
performance of the Executive's proposed duties for the Employer will not
violate any obligations the Executive may have to any such previous
employer or other party. In the Executive's work for the Employer, the
Executive will not disclose or make use of any information in violation
of any agreements with or rights of any such previous employer or other
party, and the Executive will not bring to the premises of the Employer
any copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other
party.
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(f) LITIGATION AND REGULATORY COOPERATION. During and after
the Executive's employment, the Executive shall cooperate fully with the
Employer in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of
the Employer which relate to events or occurrences that transpired while
the Executive was employed by the Employer. The Executive's full
cooperation in connection with such claims or actions shall include, but
not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Employer at
mutually convenient times. During and after the Executive's employment,
the Executive also shall cooperate fully with the Employer in connection
with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to
events or occurrences that transpired while the Executive was employed
by the Employer. The Employer shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in connection with the
Executive's performance of obligations pursuant to this Section 7(f) and
shall pay the Executive for his time at his annual salary rate in effect
at the time of the termination of his employment.
(g) DEVELOPMENTS. Executive will make full and prompt
disclosure to the Employer of all inventions, discoveries, designs,
developments, methods, modifications, improvements, processes,
algorithms, databases, computer programs, formulae, techniques, trade
secrets, graphics or images, audio or visual works, and other works of
authorship (collectively "Developments"), whether or not patentable or
copyrightable, that are created, made, conceived or reduced to practice
by Executive (alone or jointly with others) or under Executive's
direction during the period of his employment. Executive acknowledges
that all work performed by Executive for Employer hereunder is on a
"work for hire" basis, and Executive hereby assigns and transfers, and
will assign and transfer, to the Employer and its successors and assigns
all of Executive's right, title and interest, including but not limited
to all patents, patent applications, trademarks and trademark
applications, copyrights and copyright applications, and other
intellectual property rights in all countries and territories worldwide
and under any international conventions, in and to all Developments that
(a) relate to the business of the Employer or any of the products or
services of the Employer; (b) result from tasks assigned to Executive by
the Employer; or (c) result from the use of personal property (whether
tangible or intangible) owned, leased or contracted for by the Employer.
(h) INJUNCTION. The Executive agrees that it would be
difficult to measure any damages caused to the Employer which might
result from any breach by the Executive of the promises set forth in
this Section 7, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, subject to Section 8
of this Agreement, the Executive agrees that if the Executive breaches,
or threatens to breach, any portion of this Agreement, the Employer
shall be entitled, in addition to all other remedies that it may have,
to an injunction or other appropriate equitable relief to restrain any
such breach without showing or proving any actual damage to the
Employer.
8. ARBITRATION OF DISPUTES. Any controversy or claim arising out of
or relating to this Agreement or the breach thereof or otherwise arising out of
the Executive's employment or
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the termination of that employment (including, without limitation, any claims of
unlawful employment discrimination whether based on age or otherwise) shall, to
the fullest extent permitted by law, be settled by arbitration in any forum and
form agreed upon by the parties or, in the absence of such an agreement, under
the auspices of the American Arbitration Association ("AAA") in Boulder,
Colorado in accordance with the Employment Dispute Resolution Rules of the AAA,
including, but not limited to, the rules and procedures applicable to the
selection of arbitrators. In the event that any person or entity other than the
Executive or the Employer may be a party with regard to any such controversy or
claim, such controversy or claim shall be submitted to arbitration subject to
such other person or entity's agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. This Section
8 shall be specifically enforceable. Notwithstanding the foregoing, this Section
8 shall not preclude either party from pursuing a court action for the sole
purpose of obtaining a temporary restraining order or a preliminary injunction
in circumstances in which such relief is appropriate; PROVIDED, that any other
relief shall be pursued through an arbitration proceeding pursuant to this
Section 8.
9. CONSENT TO JURISDICTION. To the extent that any court action is
permitted consistent with or to enforce Section 8 of this Agreement, the parties
hereby consent to the jurisdiction of the courts of the State of Colorado.
Accordingly, with respect to any such court action, the Executive (a) submits to
the personal jurisdiction of such courts; (b) consents to service of process;
and (c) waives any other requirement (whether imposed by statute, rule of court,
or otherwise) with respect to personal jurisdiction or service of process.
10. INTEGRATION. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements between the parties with respect to any related subject matter.
11. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Neither the Employer
nor the Executive may make any assignment of this Agreement or any interest
herein, by operation of law or otherwise, without the prior written consent of
the other party; PROVIDED, that, subject to the provisions hereof concerning a
Change of Control, the Employer may assign its rights under this Agreement
without the consent of the Executive in the event that the Employer shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity. This Agreement shall inure to the benefit of and be binding
upon the Employer and the Executive, their respective executors, administrators,
heirs and permitted successors or assigns.
12. ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
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13. WAIVER. No waiver of any provision hereof shall be effective
unless made in writing and signed by the waiving party. The failure of any party
to require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at 1140 Pearl Street, Boulder, CO
80302, ATTN: Board of Directors, and shall be effective on the date of delivery
in person or by courier or three (3) days after the date mailed.
15. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Employer.
16. GOVERNING LAW. This is a Colorado contract and shall be
construed under and be governed in all respects by the laws of the State of
Colorado, without giving effect to the conflict of laws principles of such
State.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
IN WITNESS WHEREOF, this Agreement has been executed by the Employer and
by the Executive as of the Effective Date.
FRONT PORCH DIGITAL, INC.:
By: /s/ Michael Knaisch
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Name: Michael Knaisch
Title: President
EXECUTIVE:
/s/ Thomas P. Sweeney III
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Thomas P. Sweeney III